By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona's use of private prisons does not violate the rights of inmates, a federal appeals court ruled Tuesday.
And it does not amount to slavery, wrote Judge Kenneth Lee for the three-judge panel of the 9th Circuit Court of Appeals, despite arguments to the contrary by attorneys for the state NAACP.
The decision leaves intact the moves by state lawmakers over the years to increasingly contract with companies that run private prisons in what they have argued is a bid to save money.
As of last month, nearly a third of 31,742 male inmates at the state Department of Corrections, Rehabilitation and Reentry are in private facilities. By comparison, the figure was closer to 22 percent just four years earlier.
What's wrong with all that, according to the NAACP, is their allegation that private prisons are inferior to state-run prisons because they are motivated by profit, leading them to cut costs, resulting in diminished safety and security and fewer programs and services. The organization also said private prisons have a financial interest to keep inmates longer, something they accomplish by manipulating disciplinary proceedings.
But much of the lawsuit, filed in 2020, is based on the argument that private prisons run afoul of the 13th Amendment which outlawed slavery. That is based, in part, on the argument that private prisons require inmates to work.
And then there's the complaint that the prisons profit from maintaining custody of prisoners, something the NAACP equated to slavery.
Lee said the argument doesn't hold water. And it starts, he said, with the fact that the 13th Amendment says its prohibitions do not apply in cases of "punishment for crime whereof the party shall have been duly convicted.''
"The amendment expressly carves out incarceration,'' Lee wrote. "Thus, we have held that the 13th Amendment does not forbid prison labor requirements.''
But that, the judge said, is not all.
"Of course, incarceration in a private prison does not remotely approximate chattel slavery,'' he said. Lee said when the 13th Amendment was adopted, the term "slavery'' meant not just a system of exploitative labor but also a system of treating people that property that could be bought and sold.
"Convicted prisoners assigned to a private prison have not been relegated to such a position of dehumanizing subordination,'' the judge said.
"Private prisons do not own prisoners,'' he continued. "Nor do they buy or sell prisoners; instead, the state of Arizona determines where prisoners are incarcerated.''
Dianne Post, an attorney for the state NAACP, called that conclusion "disappointing.''
"Once again, they missed the entire point,'' she told Capitol Media Services.
"They are buying and selling people,'' Post said."When you get more people into your prison, you make more money.''
She said these private companies "bargain for prisoners from another state, or prisoners that are convicted for this or that'' knowing that each inmate translates to a certain number of dollars per day.
"To me, that is the same thing as buying and selling people,'' Post said. "And doing this for profit is the same thing as slavery.''
She conceded it is "not exactly the same thing as chattel slavery,'' with "chattel'' being another word for anything that is private property other than real estate.
"But it does not have to be in order to be a violation of the 13th Amendment,'' Post said.
Lee, in writing the decision, said there are other flaws in the arguments by the NAACP that private prisons are inferior.
"By statute, private prisons must offer a level and quality of services that are at least functionally equal to those that would be provided by state-run facilities,'' he said, quoting state law. And he rejected the claim that private prisons can manipulate the system to keep inmates longer -- and continue to get funds -- through disciplinary actions.
"Private prisons also cannot discipline prisoners or make decisions influencing prisoners' sentence credits or release dates,'' Lee wrote.
Lee did note that the U.S. Supreme Court has held that an inmate has a "liberty interest'' in avoid a prison that "imposes atypical and significant hardship on the inmates in relation to the ordinary incidents of prison life.'' But that, he said, is a high bar to overcome.
For example, he said, courts have concluded that includes things like confining prisoners to their cells for 23 hours a day and where there are additional severe limitations on human contact. But Lee said nothing in the NAACP lawsuit reaches that level.
"The complaint lacks any allegation that private prisons deprive prisoners of meaningful interpersonal contact or that they confine prisoners to their cells for 23 hours per day -- or anything approaching these restrictions,'' the judge said.
And, beyond that, Lee said the Constitution does not give prisoners a right to demand placement at their preferred facility.
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